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Species at Risk Putting Wind Projects at Risk

Ontario’s Environmental Review Tribunal (ERT) has allowed another wind project Renewable Energy Approval (REA) appeal on the basis of environmental concerns. In doing so, it has made findings on the statutory test of “serious and irreversible harm to animal life or the natural environment” with respect to species at risk that could have significant impacts on future renewable energy projects.

The case, Hirsch v. Ontario (Environment and Climate Change), was an appeal of a 27 turbine project in Prince Edward County east of Toronto. The issues raised included potential impacts on the little brown bat, which is endangered in Ontario, and the Blanding’s turtle, which is threatened in Ontario.

There was no specific evidence of little brown bats in the vicinity of the project. However, there was evidence that the species was historically present in the county and the project area did contain potential foraging habitat. The ERT was critical of the proponent for failing to carry out surveys, which they stated was “of particular concern when there is evidence of the historic presence of what is now an endangered species”, and found on the balance of probabilities that the bats would likely be present. Of greater concern to wind project proponents was the finding of harm. Even though the evidence was clear that “few” bats would be impacted by turbines, the ERT found that an increase in mortality “of even small numbers of little brown bats constitutes a serious impact.” It then went on to find that even small scale impacts would lessen the species’ chances of recovery and would therefore represent “irreversible harm.”

The ERT used similar analysis to find that there would be serious and irreversible harm to Blanding’s turtles on the basis that improvements to local municipal roads could increase fatalities and predation and found “because this is a threatened species protected under the ESA, and because it cannot easily recover from population declines … these annual losses from road mortality and nest predation represent irreversible harm to the local population.”

It is noted that the ERT invited submissions on appropriate mitigation measures and as such it is possible that mitigation measures will ultimately allow this specific project to proceed. However, the ERT’s interpretation of the legislative language on “serious and irreversible harm” remains cause for concern. The ERT has now interpreted “serious and irreversible harm to animal life or the natural environment”, which was intended to present a very high bar to REA appellants, as any mortality to a species at risk even in cases where the Ministry of Natural Resources and Forestry, the ministry responsible for endangered species, has permitted the activity. Renewable energy developers in Ontario should take notice.

Compare jurisdictions: Arbitration

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